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OfficialUSCIS — FAQs for Individuals in H-1B Nonimmigrant Status · Last verified
Staying on H-1B past the sixth year
H-1B normally stops at six years. Two provisions of the same 2000 law let you go past it while a green card case is under way — one gives a year at a time, the other up to three. Which applies depends on how far along your case is.
Why the exemptions exist
Sections 106 and 104(c) of the American Competitiveness in the Twenty-First Century Act created exemptions to the six-year maximum stay for H-1B workers whose employers were sponsoring them for permanent residence and who were caught in lengthy processing delays. The premise of both is the same: a person should not be forced to leave because the government's queue outlasted their visa.
Source: USCIS — FAQs for Individuals in H-1B Nonimmigrant Status · in effect from 2000-10-17
One year at a time, once a case is 365 days old
Section 106 removes the six-year limit where 365 days or more have passed since a labour certification application or an immigrant petition was filed. Extensions under it are granted in one-year increments until a final decision is made on the case. The test is applied against the end of your six-year limit: what matters is whether the labour certification or the I-140 had been on file for at least 365 days by the time that limit is reached.
Source: USCIS — FAQs for Individuals in H-1B Nonimmigrant Status · in effect from 2000-10-17
Up to three years, once an I-140 is approved
Section 104(c) allows an employer to request an extension beyond six years where you are the beneficiary of an approved Form I-140 in the first, second or third preference category. Under it an extension may be granted for up to three years at a time rather than one. This is the provision most people in a long backlog eventually rely on, because an approved petition with an unavailable priority date is exactly the situation it was written for.
Source: USCIS — FAQs for Individuals in H-1B Nonimmigrant Status · in effect from 2000-10-17
You do not have to currently hold H-1B status
USCIS states that you do not need to hold H-1B status at the time you request H-1B status beyond the sixth year, and that the regulations apply to people who are currently in, or who previously held, H-1B status. That is worth knowing for anyone who moved to another status in between and assumes the door closed behind them.
Source: USCIS — FAQs for Individuals in H-1B Nonimmigrant Status · in effect from 2000-10-17
Your employer asks, not you
These are extensions of an H-1B petition, so the request is made by the employer on your behalf. What you can do is make sure the underlying case is far enough along to qualify — the 365-day clock in particular runs from a filing date that your employer and its lawyers control, not from the day you were told the process had started.
Source: USCIS — FAQs for Individuals in H-1B Nonimmigrant Status · in effect from 2000-10-17
Official
Frequently asked questions
- What is the difference between the one-year and three-year extension?
- The one-year increments come from AC21 section 106, available once 365 days or more have passed since a labour certification or immigrant petition was filed. The up-to-three-year extension comes from section 104(c) and requires an approved I-140 in the first, second or third preference category.
- Does the 365 days run from when I joined the company?
- No. It runs from the filing of the labour certification application or the immigrant petition, and the question is whether 365 days had elapsed by the time your six-year limit was reached.
- I switched off H-1B for a while. Can I still get an extension past six years?
- USCIS states you do not have to hold H-1B status at the time of the request, and that the provisions apply to those currently in or who previously held H-1B status.